Petitioner was opposite party before the District Forum.

          Respondent/complainant approached the District Forum seeking for a direction to the petitioners to replace the school van supplied to her with new one or in the alternative, pay Rs.1,42,000/- with interest @ 24% p.a. w.e.f. 23.9.1998 till the date of payment and also pay Rs.13,000/- spent by her for repairs.  It was averred in the complaint that as per the warranty, the opposite party i.e. the

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petitioner was committed to provide warranty for 6 months or             1000/- km whichever occurs earlier.  Out of 6 regular services, the customer is eligible for three services within 90 days of purchase or within the run of 4500 km whichever occurs earlier.  The said vehicles started giving frequent breakdown problems.  Complainant brought this fact to the notice of the petitioner but the petitioner was unable to rectify the same.  Complainant thereafter requested the petitioner to replace the vehicle which was rejected.  Aggrieved against this, a complaint was filed.

          District Forum allowed the complaint partly.  It came to the conclusion that there was a deficiency in service on part of the petitioner and directed the petitioner to pay a sum of Rs.71,000/- as cost of the vehicle, Rs.25,000/- towards compensation and Rs.13,300/- as expenditure incurred by the complainant on repairs.  Rs.1000/- were awarded as costs.

          Petitioner being aggrieved by the order passed by the District Forum, filed an appeal before the State Commission which partly allowed the appeal and reduced the amount of compensation to

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Rs.10,000/- from Rs.25,000/-.   Preliminary objection raised by the petitioner that the complaint was not maintainable as the vehicle was being used for commercial purposes, was rejected on the ground that the respondent had purchased the vehicle for earning her livelihood.  Hence, it could not be held that the same was being used for commercial purposes.

          Respondent inspite of notice issued, has not put in appearance.  In fact, the petitioner did not appear at any stage in the last 4 years despite notices issued to her.  Ordered to be proceeded ex-parte.

          Counsel for the petitioner has been heard.

          As per averments made in the complaint, respondent is a widow and is running a school at  Yelamanchili in order to eak out her livelihood.  As the school was in a remote area, respondent purchased a school van to increase the number of students in the school. 

          Counsel for the petitioner submits that the vehicle had been purchased for commercial purpose as the respondent was taking transportation charges from the students for bringing them to the

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school.  At best, the primary purpose of purchasing the bus was to augment the number of students in the school and not to eak out her livelihood from the purchase of the bus.

          Hon’ble Supreme Court in “’Kalparvruksha Charitable Trust Vs. Toshniwal Borhters (Bombay) Pt. Ltd. & Anr., 1999 (9) Supreme 134” after taking into consideration the law laid down in “Luxmi Engineering Works, Vs. P.S.G. Industrial Institute (1995) 3 SCC 583” came to the conclusion that the question is as to whether a person would fall within the definition of ‘CONSUMER’, would be a question of fact which is required to be determined in every case on the basis of facts stated therein.  In the said case, a charitable institution had purchased a CT Scan Machine.  Only 10% of the patients were provided free service whereas 90% of the patients were being charged for the service rendered.  Plea taken by the complainant in the said case that it was not a commercial activity was turned down by the Hon’ble Supreme Court by observing thus:

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       9.      In the instant case, what is to be considered is whether the appellant was a “consumer” within the meaning of the Consumer Protection Act, 1986 and whether the goods in question were obtained by him for “re-sale” or for any “commercial purpose”.  It is the case of the appellant that every patient who is referred to the Diagnostic Centre of the appellant and who takes it and the service rendered by the appellant is not free.  It is also the case of the appellant that only ten per cent of the patients are provided free service.  That being so, the “goods (machinery) which were obtained by the appellant were being used for “commercial purpose”.

          To the similar effect is the judgment of this Commission in “Kores (India) Ltd. & Anr. Vs. Samir PUrkayastha, 1996-(004)-CTJ-0579-NCDRC”.

          In the present case, the bus had been purchased, as mentioned earlier, for bringing the children to the school but primary purpose was to increase the number of students in the school after charging transportation charges from them.  The bus was purchased

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for not eaking out her livelihood.  It was used for a commercial purpose.  Dispute in the present case would not adjudicable under the Consumer Protection Act, 1986. 

            For the reasons stated above, this revision petition is accepted.  Order under appeal is set aside and the complaint stands dismissed.